Synopsis

This motion comes before the Court on defendant’s pre-answer motion to
dismiss the claim pursuant to CPLR Rule 3211 (a) (2), (7) and (8) for failure to
state a cause of action and lack of subject matter jurisdiction and personal
jurisdiction. Claimants oppose the motion and cross-moves for leave to amend
the claim and for leave to file a late claim pursuant to Court of Claims Act
Section 10 (6). Defendant’s motion to dismiss the claim (and amended
claim) is granted upon the grounds that the claim is jurisdictionally defective
since the claim fails to comply with the substantive pleading requirements of
Court of Claims Act Section 11 (b). The Court does not reach the other issues
raised by the parties, and any issues not specifically addressed herein are
deemed moot or denied, and in particular, the Court notes that claimant’s
motion for leave to file a late claim, pursuant to Court of Claims Act Section
10 (6) is denied as that proposed claim has the same jurisdictional defects as
discussed herein.

HON. ANDREW M. CUOMOAttorney General of the State
of New YorkBy: JOEL L. MARMELSTEIN,
ESQ.Assistant Attorney General

Third-party
defendant’s attorney:

Signature date:

July 23, 2007

City:

Utica

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

Decision

Defendant has brought this pre-answer motion to dismiss the claim before the
Court pursuant to CPLR Rule 3211 (a) (2), (7) and (8) for failure to state a
cause of action and lack of subject matter jurisdiction and personal
jurisdiction. Claimants oppose the motion and cross-move for leave to amend the
claim and for leave to claimant, EK, to file a late claim pursuant to Court of
Claims Action Section 10 (6). The Court has considered the following
papers:

Notice of Motion, filed February 14, 2007

Affirmation of Joel L. Marmelstein, Esq., dated February 14, 2007

Exhibits A - B, annexed to the moving papers

Notice of Cross-Motion, filed March 23, 2007

Affidavit of Matthew H. McArdle, Esq., sworn to March 22, 2007

Exhibits A - D, annexed to the cross-moving papers, Exhibit D of which
included:

This matter[1] comes before the court on
defendant’s pre-answer motion to dismiss the claim pursuant to CPLR Rule
3211 (a) (2), (7) and (8) for failure to state a cause of action and lack of
subject matter jurisdiction and personal jurisdiction.

Claimants oppose the motion and cross-move for leave to amend the “Notice
of Claim” (hereinafter properly referred to as a “claim”), and
for leave to claimant EK to file and serve a late “Amended Notice of
Claim” [sic] pursuant to Court of Claims Act § 10 (6).

According to the claim, Stephen H. Kotzen was an employee of the State of New
York and a member of the New York State Police and/or the Bureau of Criminal
Investigation at all times relevant to the claim. It is alleged that beginning
“on or about 1998 through June 22, 2005” Kotzen:

during the course of his employ with the State of New York and while on duty
with the New York State Police and/or Bureau of Criminal Investigation, used his
position of authority with the New York State Police and/or Bureau of Criminal
Investigation to establish confidential relationships with SC, CB and EK, and
engaged in a consistent and continuing pattern of sexual abuse, rape, sexual
misconduct, mental torture and mental abuse, against the said SC, CB and
EK.

Claimants, SC, CB and EK, together with RC, the mother of SC, seek damages
arising out of these incidents. The claim alleges that the incidents took place
in “the Town of Massena, County of St. Lawrence and State of New York, and
various other locations in St. Lawrence County.” No specific sites or
dates and times are given for any of the incidents. Nor are facts offered in
the claim to support the general allegation that Kotzen did the alleged acts
while on duty or otherwise in the performance of his state employment. Likewise
there are no factual allegations in the complaint, or any supporting materials
offered on this motion, to support the repeated allegations in the motion papers
that the defendant had any knowledge of these incidents or Kotzen’s
activities during the relevant time period of 1998 through June 22, 2005.

As noted above, it is the defendant’s contention that the claim fails to
state a cause of action and that the court lacks jurisdiction. It is the
contention of defendant that “the claim should be dismissed as being
vague, improper, and failing to meet the requirements of § 11 (b) of the
Court of Claims Act and 22 NYCRR 206.6 (b) [Rule 206.6 (6) of the Uniform Rules
of the Court of Claims]” (Marmelstein affirmation, dated February 14,
2007).

Also noted above, claimants cross-moved for permission to amend the claim.
While defendant opposed that portion of the cross-motion which seeks to allow
the filing of a late claim by claimant EK, the State did not oppose the motion
to amend the claim. As defense counsel noted, permission is not necessary in
this case. Accordingly, the court will consider the amended
claim[2] in its discussion of the
defendant’s motion. However, the only meaningful differences between the
claim and amended claim are that the amended claim added specific residential
addresses and mailing addresses for each claimant and added the dates of birth
of each of the three younger claimants.

As for the alleged negligence of the state, the amended claim essentially seeks
to hold the State liable under three theories: 1) Kotzen was acting within the
scope of his employment, and therefore defendant is vicariously liable for the
acts of its employee; 2) the State was negligent in its hiring and retention of
Kotzen; and 3) the intentional acts of the State’s agents and employees.
Claimants also allege a “special relationship” between the claimants
and defendant.

Court of Claims Act § 11 (b) provides in relevant part:

[t]he claim shall state the time when and place where such claim arose,
the nature of same, and the items of damage or injuries claimed to have been
sustained and the total sum claimed. [emphasis added]

Claimants misapprehend the significance of compliance with the statutory
requirements of the Court of Claims Act. The State has sovereign immunity. It
is only subject to legal action by its leave. In granting its consent for
waiver of immunity against the State, the legislature conditioned such waiver
with the limitation that it is made “provided the claimant complies with
the limitations of this article [Court of Claims Act]” (Court of Claims
Act § 8).

Because suits against the State are allowed only by the State’s waiver of
sovereign immunity and in derogation of the common law, statutory requirements
conditioning suit must be strictly construed. . .

The Court of Appeals’ recent decisions in Lepkowski v State of New
York, 1 NY3d 201 and Kolnacki v State of New York, 8 NY3d 277, are
dispositive of the primary issue raised on this motion - that is, whether the
amended claim states a cause of action.

The amended claim states - as did the original claim - that the “time
when” the claim arose is “[b]eginning on or about 1998 through June
22, 2005"[3]. Despite the claims of three
separate individuals to molestation by Kotzen over the period of years, the
claim offers not one single instance of a precise date on which such abuse
occurred. This eight-year span of time simply - and regrettably - does not
comply with the statutory prerequisites of the Court of Claims
Act.[4]

A similar time span was presented in Lepkowski v State of New York, 1
NY3d 201. In that class action claimants, public employees, sought overtime
compensation and specified the “time when” the claim arose as
“July 1992 and continuing to the present [claim was filed in 1998]”
(Lepkowski v State of New York, 1 NY3d 201, 207). The court stated that
this left the State to guess that some or all of the class members worked some
hours of overtime in some or all of the weeks over this time
period.[5] The court in Lepkowski found
that:

[t]his is insufficiently definite “to enable the State . . . to
investigate the claim[s] promptly and to ascertain its liability under the
circumstances,” which is the guiding principle informing section 11 (b)
(Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]).

Lepkowski v State of New York,

1 NY3d 201, 207.

In Kolnacki v State of New York, 8 NY3d 277, a decision issued on March
22, 2007, the Court of Appeals again affirmed its position that the requirements
of Court of Claims Act § 11 (b) are to be strictly construed:

Kolnacki argues that Lepkowski is distinguishable because in the present
case there is only one deficiency in the claim - failure to allege the total sum
claimed - and because this is an action for personal injuries, which may be
harder to quantify. These distinctions lack merit. Lepkowski made clear
that all of the requirements in section 11 (b) are “substantive conditions
upon the State’s waiver of sovereign immunity” (1 N.Y.3d at 207).
The failure to satisfy any of the conditions is a jurisdictional defect. . . .
We have consistently held that nothing less than strict compliance with the
jurisdictional requirements of the Court of Claims Act is necessary (citations
omitted).

(Kolnacki v State of New York,

8 NY3d 277, 280-281).

The use of the eight-year time span for the “time when” the claim
arose is a jurisdictional defect for which the claim must be dismissed. And,
for the reasons set forth below, the failure to state a “place where such
claim arose” is also such a jurisdictional defect. The amended claim sets
forth the same general location for the place where the claim arose as set forth
in the original claim and as quoted
above.[6]

The issue of similar imprecise locations was also presented to the Court of
Appeals in Lepkowski (supra). In that case, the “place
where” the claims arose was the state employees’ various work
locations, which were not specified. In response to the State’s motion to
dismiss:

Claimants contend that the State can easily ascertain from its personnel records
exactly when and where each claim arose[7] . . .;
however, this is not the State’s burden. The Court of Claims Act does not
require the State to ferret out or assemble information that section 11 (b)
obligates the claimant to allege (Cobin v State of New York, 234 AD2d
498, 499 [2d Dept 1996]).

Lepkowski v State of New York,

1 NY3d 201, 208.

The issue of “place where” in this matter is controlled by the
Court of Appeals’ rulings, as is the issue of “time when”.
Accordingly, this claim is jurisdictionally defective, since the claim fails to
comply with the substantive pleading requirements of Court of Claims Act §
11 (b); the motion to dismiss the claim (and amended claim) is granted upon this
ground. The court does not reach the other issues raised by the parties, and
any issues not specifically addressed herein are deemed moot, or denied, where
appropriate. In particular, the court would note that EK’s motion for
leave to file a late claim, pursuant to Court of Claims Act § 10 (6) is
denied as that proposed claim has the same jurisdictional defects discussed
herein.[8]

July 23, 2007Utica, New
York

HON. NORMAN I. SIEGELJudge of the Court of Claims

[1]. This claim includes allegations of sexual
abuse and rape. Thus, the claimants are entitled to the privacy protections of
Civil Rights Law Section 50-b. As a result, claimants shall not be referred to
by name, but shall be identified by initials serving as pseudonyms.

[2]. Though it should be noted that the only
amended claim provided to the court is the amended claim attached to the
cross-motion. This amended claim is neither signed nor verified.

[3]. While “June 22, 2005" would appear to
be a precise date for when the claim arose, there is nothing to suggest that any
incident occurred on that date. Rather, the exhibits and affidavits submitted
by claimants and defendant indicate that on June 21, 2005 the mother of claimant
CB first reported to the State Police that she had learned that Kotzen had
molested her son when he was sixteen years old (he had recently turned seventeen
prior to this report). Apparently the police immediately began an investigation
and supporting depositions were taken from CB, RC, and EK, all of which are
dated June 22, 2005. Affidavits submitted by claimants in support of the
cross-motion are more specific about the period when the claims arose for each
individual claimant. Nevertheless, each of those affidavits spreads the
“time when” the individuals’ claims arose over periods of
years.

[4]. And, as the State notes, the extended time
span raises significant and numerous statute of limitation issues, which the
court need not address here.

[5]. At least these were all state employees
whose time records were capable of being confirmed. In the case before this
court, the information on the dates of specific incidents is solely within the
knowledge of the claimants, and not discoverable through a review of state
records.

[6]. Interestingly, affidavits of the claimants
were submitted simultaneously with the proposed amended claim, and they provide
more specific - though still imprecise - information about the places where the
various incidents occurred. By way of example, the affidavit of EK, sworn to
March 14, 2007 states that “[b]eginning around 1997 through approximately
2000 or 2001, Kotzen sexually molested and abused me on several occasions. This
abuse occurred countless times at Kotzen’s personal residence in
Louisville, New York; approximately six or seven times at Kotzen’s hunting
camp in Malone, New York; one time at Kotzen’s brother’s house in
Pennsylvania; and one time at a hotel in Utica, New York on a trip for a hockey
game.”

[8].Parenthetically, and while not necessary to
the court’s determination, it cannot be left unsaid that there are serious
issues raised as to the merits of the claim against the state. Let there be no
misunderstanding - the alleged acts of Stephen Kotzen (for which he apparently
pled guilty to criminal charges) are beyond reprehensible. And the harm which
must have been done to his young victims is without measure. However, that does
not equate to liability on the part of the State. As the State argued and
claimants conceded, there is no legal cause of action against the State pursuant
to 42 U.S.C. § 1983. While the claimants argue, as though beyond cavil,
that the State is liable for the rape of citizens by one of its employees, there
is ample case law that the State can only be held liable for the acts of
employees acting within the scope of their employment and such sexual assault is
not conduct in the furtherance of the employer’s business for which it can
be held vicariously liable (see N.X. v Cabrini Medical Center, 97 NY2d
247; Judith M. v Sisters of Charity Hospital, 93 NY2d 932). Likewise,
while the State may be held liable to individuals for the negligent performance
of its police duties, where it can be established that a “special
relationship” existed (see Cuffy v City of New York, 69 NY2d 255),
there is not an iota of factual support offered on these motions for this cause
of action. Lastly, while the State could certainly be held liable to claimants
for negligence of the acts of its agents and employees in failing to take action
or respond upon notice of the acts of Kotzen (see Judith M. v Sisters of
Charity Hospital, 93 NY2d 932), no factual support is offered either in the
claim or the supporting affidavits that defendant had any knowledge of
Kotzen’s activities prior to June 22, 2005 or that they were done under
any color of authority.